Citation NR: 9604864
Decision Date: 02/29/96 Archive Date: 03/12/96
DOCKET NO. 93-24 797 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUES
1. Entitlement to an increased rating for chronic low back
strain, currently evaluated as 20 percent disabling.
2. Entitlement to an increased (compensable) rating for gout
of the left great toe.
3. Entitlement to service connection for disc herniation at
L4-5 and L5-S1.
4. Entitlement to a total disability rating based on
individual unemployability due to service connected
disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The appellant, his wife and father
ATTORNEY FOR THE BOARD
Jeffrey A. Pisaro, Counsel
INTRODUCTION
The veteran had active service from September 1971 to
September 1980 and from September 1983 to September 1987.
This appeal arises from a June 1992 rating decision of the
Manchester, New Hampshire, Regional Office (RO), which denied
entitlement to an evaluation in excess of 10 percent for low
back strain and denied entitlement to a total disability
rating based on individual unemployability due to service
connected disabilities. By rating decision in January 1993,
service connection for gout of the left great toe was
established and a noncompensable evaluation was assigned; the
veteran expressed disagreement with the assignment of the
zero percent evaluation. This appeal also arises from a
March 1993 rating decision which denied entitlement to
service connection for central disc herniation at L4-5 and
L5-S1.
In late 1993, at the time the case was initially transferred
from the Manchester, New Hampshire RO to the Board, notice
was received that the veteran was permanently moving to
Arizona. Accordingly, it would appear that the RO in
Manchester, New Hampshire will need to formally transfer the
case to the Phoenix, Arizona RO, for completion of the
development called for in the remand order.
In September 1994, an executed power of attorney was received
at the Board assigning The American Legion as the veteran’s
representative and indicating that the power of attorney to
the American Legion was “limited to VAMC issues at this
time.” The Disabled American Veterans representative at the
Board made an informal hearing presentation in the veterans’
behalf prior to receipt of the new power of attorney. Upon
return of this case to the Manchester, New Hampshire RO and
transfer to the Phoenix, Arizona RO, clarification should be
sought from the veteran as to whether the Disabled American
Veterans is still representing him with regard to the issues
noted on the title page of this decision.
In addition, the veteran has recently requested entitlement
to service connection for neck disability and a hiatal
hernia, and an increased rating for bilateral hearing loss.
These additional issues are referred to the RO for
appropriate consideration.
REMAND
The veteran contends that the RO erred by failing to grant
increased evaluations for disability of the low back and for
gout. He also maintains that the RO erred by failing to
grant service connection for disc herniation at L4-5 and L5-
S1, and by failing to grant a total disability rating for
compensation purposes based on individual unemployability.
Of record is a January 1993 decision of the Social Security
Administration (SSA) which granted disability benefits to the
veteran; however, the medical records upon which that
decision was based have not been obtained. Masors v.
Derwinski, 2 Vet.App. 181 (1992) mandates that VA must obtain
a SSA decision which awards disability benefits and the
records upon which it was based. Accordingly, the RO should
obtain the complete evidentiary record upon which the January
1993 SSA decision granting disability benefits was based.
VA has a duty to assist the veteran in the development of
facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1995). The Court has held that
the duty to assist includes obtaining available records which
are relevant to the claimant’s appeal. The duty to assist is
neither optional nor discretionary. Littke v. Derwinski, 1
Vet.App. 90 (1990). The case was administratively remanded
to the RO in July 1994 to allow the RO to comply with a
records request from the Department of Labor. The May 1994
Labor Department request reveals that the veteran was in
receipt of Workers’ Compensation benefits. The RO should
contact the veteran and ensure that all current treatment
records have been obtained to include any decision granting
Workers’ Compensation benefits and all medical records upon
which that decision was based.
The duty to assist also includes, when appropriate, the duty
to conduct a thorough and contemporaneous examination of the
veteran that takes into account the records of prior medical
treatment. Green v. Derwinski, 1 Vet.App. 121 (1991). This
is to ensure that the evaluation of a disability is a fully
informed one. In this case, it is contended that the
veteran’s service connected low back strain and gout have not
been adequately evaluated. It is also contended that disc
herniation of the low back should be service connected. The
veteran maintains that an August 1993 VA medical opinion
which concluded that the veteran’s herniated lumbar disc was
not related to military service was incorrect. Moreover, in
Allen v. Brown, 7 Vet.App. 439 (1995), the Court held that
service connection may be granted for a disorder if that
disability was aggravated by a service connected disability.
Accordingly, the veteran should be afforded a VA orthopedic
examination to include an opinion as to whether disc
herniation of the low back was aggravated by service
connected disability, particularly the service connected low
back strain.
Under the circumstances of this case, further assistance is
necessary. Accordingly, the case is REMANDED to the RO for
the following:
1. The RO should contact the veteran and
obtain the names and addresses of all
health care providers who have treated
him for low back strain and gout in
recent years. Thereafter, the RO should
obtain legible copies of all records
which have not already been obtained. In
addition, the RO should obtain the
decision awarding Workers’ Compensation
benefits and the medical records upon
which it was based. Once obtained, all
records should be associated with the
claims folder.
2. The RO should contact the SSA and
obtain legible copies of the medical
records upon which the January 1993
decision awarding disability benefits to
the veteran was based, as well as any
other relevant records. Once obtained,
all records must be associated with the
claims folder.
3. Following completion of the above
development, the veteran should be
afforded a VA examination in orthopedics
to determine the current nature and
extent of low back strain and gout. It
is imperative that the physician reviews
the entire claims folder prior to the
examination and all indicated tests, to
include complete range of motion studies
for the back, should be conducted. Gout
and low back strain should be evaluated
in relation to their history with
emphasis upon the limitation of activity
imposed by the disabling conditions in
light of the whole recorded history. It
should be indicated whether gout is
manifested as an active process with one
or two exacerbation’s a year in a well
established diagnosis; and all
manifestations of low back strain should
be listed. The orthopedist should render
an opinion, based on a complete review of
the record and the current examination,
as to whether it is at least as likely as
not that there is an etiological
relationship between disc herniation at
L4-5 and L5-S1 and the veteran’s military
service, or if disc herniation at L4-5
and L5-S1 is proximately due to or
aggravated by the service connected low
back strain. The factors upon which the
medical opinion is based must be set
forth for the record.
4. Following completion of the
foregoing, the RO should review the
claims folder and ensure that all
requested development has been completed.
If any development is incomplete,
appropriate corrective action should be
implemented. When the requested
development is completed, the RO should
readjudicate the veteran’s claims to
include consideration as to whether
service connection may be granted for
disc herniation at L4-L5 and L5-S1 as
being caused by or being aggravated by
the service connected low back strain.
In the event the benefits appealed for are not granted, the
veteran and his representative should be provided a
supplemental statement of the case and afforded a reasonable
time to reply thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. No action is required of the
veteran until notified. The purpose of this remand is to
procure clarifying data and to comply with precedent
decisions of the Court..
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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